NEW SOUTH WALES COURT OF APPEAL
CITATION: Scaltrito v NRMA Insurance Limited [2003] NSWCA 63
FILE NUMBER(S):
40480/01
HEARING DATE(S): 06/03/03
JUDGMENT DATE: 01/04/2003
PARTIES:
Tony Scaltrito (Appellant)
NRMA Insurance Limited (Respondent)
JUDGMENT OF: Sheller JA Young CJ in Eq Grove J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 428/01
LOWER COURT JUDICIAL OFFICER: Gamble ADCJ
COUNSEL:
M R Aldridge SC and E E Welsh (Appellant)
C R R Hoeben SC with W Austron (Respondent)
SOLICITORS:
The Norton Law Group, Lapaine Pomare & Forster (Appellant)
Hicksons (Respondent)
CATCHWORDS:
Workers Compensation- Limitations of actions- Leave to commence proceedings required- When to exercise the discretion- Onus of proof upon the worker- Must be fair and just to extend time- Explanation of delay required- Leave not to be granted if it will lead to prejudice which will prevent a fair trial- Must demonstrate viability of the cause of action- Workers Compensation Act 1987, s 151D. Workplace Injury Management and Workers Compensation Act 1998- Retrospective application of the Act- Changes to rights to obtain common law damages in certain situations- Futility of an action brought out of time, even where injury occurred before the commencement of the amendment- Workers Compensation Act 1987, ss 151G, 151H. (D)
LEGISLATION CITED:
Workers Compensation Act 1987, ss 151D, 151G, 151H
Workplace Injury Management and Workers Compensation Act 1998
DECISION:
Appeal dismissed.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
40480/01
SHELLER JA
YOUNG CJ in EQ
GROVE JTuesday 1 April 2003
SCALTRITO v NRMA INSURANCE LIMITED
Judgment
SHELLER JA: I have had the benefit of reading the judgments in draft prepared by Young CJ in Eq and Grove J. I agree that the Judge at first instance may have overlooked that Dr Parmegiani was a treating doctor. But even so, for the reasons expressed by Grove J, I am satisfied it was open to the Judge not to accept what the doctor said. Accordingly for this reason, and those given by Young CJ in Eq, I would dismiss the appeal with costs.
I can see the force of what Young CJ in Eq has said about the futility point. I prefer, since it is unnecessary to express a view about it, not to express any view.
YOUNG CJ in EQ: The appellant, while working for the defendant as a storeman on 30 July 1995, lifted a large box and suffered back pain. The appellant complains that he had been working a lot of overtime, doing a lot of shifting and that the back pain came about because of an unsafe system of work. After this incident, the appellant was unable to perform his normal duties. He was put on alternative work for a year or so; however, his employment was terminated in March 1998.
The appellant first consulted a solicitor on 4 September 1997 for advice about his rights generally. However, he did not commence proceedings before 30 July 1998 being the date three years from the accident which, by…
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- Case
- [2003] NSWCA 63
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the worker had discharged the onus of proof to demonstrate that it was fair and just to grant an extension of time to commence proceedings, and whether the worker had established a viable cause of action. The Court also considered the retrospective application of the 1998 Act and its impact on the worker's ability to pursue a claim, particularly in light of potential prejudice to the insurer that might prevent a fair trial.
The Court of Appeal affirmed the principles governing the exercise of discretion under section 151D of the *Workers Compensation Act 1987*. It held that the onus rests on the worker to provide a satisfactory explanation for the delay and to demonstrate that granting leave would be fair and just. Crucially, the Court reiterated that leave should not be granted if the delay would cause prejudice to the respondent that would prevent a fair trial. Furthermore, the worker must establish a prima facie case, demonstrating the viability of their cause of action. The Court found that the worker had failed to meet these requirements, and the appeal was therefore dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: YOUNG CJ
Full text does not contain this section.